Commonwealth v. Lester

129 Mass. 101, 1880 Mass. LEXIS 190

• Court: Massachusetts Supreme Judicial Court
• Decided: June 24, 1880
• Status: Published

Opinion

Ames, J.

In an indictment founded upon the Gen. Sts. c. 161, § 15, for larceny in a building, it is not enough to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief. It is necessary to show also that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building. The watches in this case were a part of the owner’s stock in trade, usually kept by him in the building. But his testimony, which was the only evidence to the point, is to the effect that he was in charge of the property, when the defendant came in and asked to look at some watches, and that he handed the watches to the defendant; that he was not sure whether the defendant held the watches in his hand, or whether they were lying on the show-case; and that they were stolen while he turned partially round to place something upon the shelf behind him. If they were upon the showcase when stolen, it would be at least doubtful whether they must not, under the circumstances, be considered as rather in the possession of the owner than under the protection of the building. If by the act of the owner they were in the hands of the defendant, they certainly derived no protection from the building. As the evidence left it wholly uncertain whether they were on the show-case 'or in the defendant’s own hands, it did not warrant a conviction of larceny in a building; and the jury should have been so instructed. Rex v. Campbell, 2 Leach (4th ed.) 564. Rex v. Castledine, 2 East P. C. 645. Rex v. Watson, 2 East P. C. 680; S. C. 2 Leach, 640. Rex v. Hamilton, 8 Car. & P. 49, 50, note. Commonwealth v. Smith, 111 Mass. 429.

Exceptions sustained